Preference in Detroit

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The New York Sun

Federal judge Arthur Tarnow did his legal duty last week: contrary to fears I voiced earlier, he ruled that he couldn’t keep the Michigan Civil Rights Initiative, which would ban the use of preferences in state hiring and college admissions, off the fall ballot.

But the judge just couldn’t bring himself to let it go at that. A Bill Clinton appointee, he clearly felt he owed it to his friends on the left to make a contribution in kind to their scare campaign against MCRI, which is being depicted as a threat to civilization as we know it (though it’s exactly similar to measures approved by voters in California and the state of Washington, where civilization seems to be moving on quite nicely).

Thus Mr. Tarnow accompanied his ruling with a huffy opinion that the MCRI signature-gathering process had inflicted a “fraud” on the people of Michigan. The fraud? A handful of witnesses told the judge they had been misled about the true nature of the MCRI — notwithstanding the fact that, as the law requires, the petitions they signed included the exact language of the ballot measure.

Because this supposed fraud was perpetrated on black and white alike, ruled Judge Tarnow, he had no power under the federal Voting Rights Act, aimed at protecting minorities, to rectify matters. But you can bet that Judge Tarnow’s smear will be endlessly highlighted in TV ads in Michigan this fall.

Mr. Tarnow also lectured Michigan election officials for their supposed failure to ferret out all this fraud. But election officials and courts across the country have repeatedly refused to get too deeply into the business of trying to divine exactly what a petition signer thought he or she was signing — a recipe for effectively gutting the whole initiative and referendum process.

In any case the debate over whether the MCRI would gut affirmative action or simply prevent preferences is precisely the sort of policy debate that voters should decide. The official ballot language seems clear that it would ban only those “affirmative action programs that give preferential treatment” based on race, gender, and so on.

And the term affirmative action, it’s worth noting, first appeared in an executive order by President Kennedy calling on government agencies to take affirmative steps to end discrimination against minorities, not to discriminate in favor of minorities. The idea of preferential treatment came later.

In the Alice-in-Wonderland world of today’s civil rights activists, failure to discriminate is itself interpreted as discriminatory. And anybody who disagrees is racist or sexist. Never mind that one of MCRI’s principal backers, California businessman, Ward Connerly, happens to be black, or that the chairperson of the MCRI campaign, Jennifer Gratz, happens to be female.

Judge Tarnow further tarnished himself by not only trying to smear the MCRI but by lobbing a pointless personal smear in the direction of Ms. Gratz, the 29-year-old who won her case against the University of Michigan. Ms. Gratz, averred the judge, was “either ignorant of … or deliberately lied” about the state’s “failure to investigate” BAMN’s allegations. But Ms. Gratz has no responsibility for what the state did or didn’t do — and if she is to be held responsible for knowledge of state actions, why shouldn’t signers of the MCRI petitions be held responsible for knowing what was in them?

Shame on Judge Tarnow for not showing the self-restraint we have a right to expect in a federal judge. And shame on him for not understanding that the essence of civil rights is equality before the law, not special treatment for some.

Mr. Bray is a columnist based in the Detroit area.

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